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[1915] VLR(104 results)

Cases reported in this volume of the Victorian Reports

PRESIDENT, ETC., OF SHIRE OF RODNEY v. VIBERTVLR 1

HOOD, J., A’BECKETT, A.C.J., CUSSEN, J.·22 Oct 1914·Supreme Court of Victoria

County CourtPractice — New trial application — Summons for, returnable at wrong time — Amendment — Enlargement of time — Refusal of County Court Judge to grant — Discretion, exercise of — Power of Supreme Court to review — Appeal — County Court Act 1890 (No. 1078), ss. 96, 133 — County Court Rules, rr. 188, 190, 210, 424 — Mandamus to County Court Judge.

EDGAR v. FREEMANVLR 16

A’BECKETT, A.C.J., HODGES, J., HOOD, J.·1 Dec 1914·Supreme Court of Victoria

County CourtPractice — Defamation — Slander — Notice of special defence of justification — Justifying words other than the words complained of — Incorporating answers to interrogatories — Striking out notice — County Court Act 1890 (No. 1078), s. 148 — County Court Rules, 64, 416.

BERNE v. WAUGHVLR 21

A’BECKETT, A.C.J.·2 Dec 1914·Supreme Court of Victoria

PracticeInspection of subject of cause or matter — Action for damages for assault — Physical injuries sustained — Medical examination of plaintiff — Power to order — Rules of Supreme Court 1906 — Order L., r. 3.

CLARKE AND CO. PROPRIETARY LIMITED v. OWENVLR 23

HODGES, J.·18 Nov 1914·Supreme Court of Victoria

JusticesCourt of Petty Sessions — Jurisdiction — Contract made in Victoria — Delivery of goods for shipment to Tasmania — Part not according to contract — Acceptance of part in Tasmania — New contract in Tasmania — Form of order where no jurisdiction — Bargain and sale — Appropriation of goods — Sale of Goods Act 1896 (No. 1422), s. 23 (5).

ROBERTSON v. BUTLERVLR 31

A’BECKETT, A.C.J., HOOD, J., CUSSEN, J.·14 Dec 1914·Supreme Court of Victoria

Real propertyTitle by adverse possession — Possession by trespasser — What constitutes — Acts of re-entry by registered proprietor, what sufficient — Real Property Act 1890 (No. 1136), ss. 19, 26, 27 — Real Property Act 1907 (No. 2086), s. 2.

IN THE WILL OF RICHARDSVLR 39

A’BECKETT, A.C.J.·9 Nov 1914·Supreme Court of Victoria

Administration and probatePractice — Commission — Future commission — Executors and trustees — Passing accounts.

IN THE WILL OF THOMASVLR 41

A’BECKETT, A.C.J.·18 Dec 1914·Supreme Court of Victoria

WillConstruction — "Children" — Meaning of — Legacy to illegitimate child described as daughter — Subsequent direction for division of residue amongst widow and children — Whether illegitimate child entitled to share.

WILSON v. HOLLANDVLR 46

HOOD, J.·17 Dec 1914·Supreme Court of Victoria

MortgageMortgagor and mortgagee — Redemption — Further advance — Priority — Payment made under guarantee covered by mortgage — Payment after notice of subsequent assignment for benefit of creditors.

STEWART v. STEWARTVLR 50

A’BECKETT, A.C.J.·9 Feb 1915·Supreme Court of Victoria

DivorceDesertion — What constitutes — Condonation upon condition — Breach of condition — Revival or continuance of matrimonial offence — Marriage Act 1890 (No. 1166), s. 74 (a).

MORGAN v. BENNETTVLR 53

A’BECKETT, A.C.J., HODGES, J., HOOD, J.·1 Dec 1914·Supreme Court of Victoria

Principal and agentStock Exchange — Broker employed to purchase shares — Delay by selling broker in delivering — Repudiation by purchasing principal — Determination of contract — Stock Exchange rules, validity of — Variation of general law — Persons employing brokers bound by rules.

RE SHANNONVLR 64

A’BECKETT, A.C.J.·7 Dec 1914·Supreme Court of Victoria

Administration and probatePractice — Foreign will — Sealing exemplification — Power of attorney, sufficiency of — Administration and Probate Act 1890 (No. 1060), s. 40.

McKINLEY v. DELANEYVLR 66

A’BECKETT, A.C.J.·18 Dec 1914·Supreme Court of Victoria

MaintenanceIllegitimate child — Evidence — "Oath of mother only" — Previous order for confinement expenses — Corroboration — Marriage Act 1890 (No. 1166), s. 48 — Marriage Act 1900 (No. 1684), s. 4.

BALLANTINE v. HINCHLIFFEVLR 69

HODGES, J., HOOD, J., CUSSEN, J.·4 Feb 1915·Supreme Court of Victoria

Factories and shops"Employed" — Meaning of — Test of employment — Voluntary and casual acts — Factories and Shops Act 1912 (No. 2386), s. 168.

IN RE THE INCOME TAX ACTSVLR 74

HODGES, J., HOOD, J., CUSSEN, J.·2 Feb 1915·Supreme Court of Victoria

Income tax"Income derived from personal exertion" — Bonus to employ — Reward for services — Whether income liable to tax — Income Tax Act 1895 (No. 1374), ss. 2, 5, 9 (11).

IN THE WILL OF WILKINSONVLR 77

HODGES, J.·18 Feb 1915·Supreme Court of Victoria

Administration and probateWill — Execution — Probate — Incorporation by reference of document not duly executed — Will leaving property "as per enclosed my last will and testament" — Writing entitled "Last will and testament" on back of will making disposition of property.

COMMISSIONERS OF THE STATE SAVINGS BANK OF VICTORIA v. PERMEWAN, WRIGHT AND CO. LIMITEDVLR 81

[Coram GRIFFITH, C.J., ISAACS, GAVAN DUFFY, POWERS, AND RICH, JJ.]·18 Dec 1914·In the High Court of Australia

Banker and customer"Banker" — Carrying on business of a banker, what constitutes — State Savings Bank of Victoria, whether bankers — Negligence — Cheques, not negotiable, crossed generally — "Not negotiable," effect of — Banker receiving payment for customer — Unauthorized crossings and markings on face of cheques — Savings Bank Act 1890 (No. 1138) — Savings Bank Act 1890 Amendment Act 1896 (No. 1481) — Instruments Act 1890 (No. 1103), s. 83 — Commonwealth Bills of Exchange Act (No. 27 of 1909), ss. 78, 87, 88, 96.

IN RE POWLETT’S TRUSTSVLR 115

HODGES, J.·17 Feb 1915·Supreme Court of Victoria

Charitable TrustsLand held in trust for church purposes — Unsuitability for purpose — Power of Court to authorize sale — Trusts Act 1890 (No. 1150), ss. 34, 36.

IN THE MATTER OF G. L. SKINNER & CO.’S BILL OF COSTSVLR 116

A’BECKETT, A.C.J.·10 Oct 1914·Supreme Court of Victoria

CostsTaxation — Conveyancing business, what is — Scales of costs — Rules of Supreme Court 1906, Appendix N.

REX v. HODGSONVLR 119

HOOD, J.·18 Feb 1915·Supreme Court of Victoria

Criminal lawPractice — Persons presented jointly — Separate trials, when ordered — Crimes Act 1890 (No. 1079), s. 421.

IN THE ESTATE OF BROWNVLR 121

[Coram GRIFFITH, C.J., BARTON, ISAACS, AND GAVAN DUFFY, JJ.]·1 Mar 1915·In the High Court of Australia

IntestacyMarried woman dying intestate without children or known next of kin — Devolution of estate — Title of husband — Bona vacantia — Title of Crown — Married Women's Property Act 1890 (No. 1116), s. 25.

IN RE GIBBVLR 126

A’BECKETT, A.C.J., HODGES, J., HOOD, J.·2 Mar 1915·Supreme Court of Victoria

Administration and probateProbate duty — Immediate gift — Possession and enjoyment to the exclusion of the donor — Husband and wife — Money supplied by husband to pay for house intended to be bought by wife — Whether gift of money — Gift by husband to wife of house — House used as matrimonial domicil — Administration and Probate Act 1903 (No. 1815), s. 11 — Administration and Probate Act 1890 (No. 1060), s. 98 — Right of husband to live in wife's house.

IN THE WILL OF THOMASVLR 141

HODGES, J., HOOD, J., CUSSEN, J.·1 Mar 1915·Supreme Court of Victoria

WillConstruction — "Children," meaning of — Legacy to illegitimate child described as daughter — Subsequent direction for division of residue amongst widow and children — Whether illegitimate child entitled to share.

KERRISON v. LAVELLVLR 145

HODGES, J.·17 Feb 1915·Supreme Court of Victoria

PracticeJury, right to — Common Law action — Claims for damages for conversion, trespass, and slander of title — Equitable relief also claimed — Rules of the Supreme Court 1906 — Order XXXVI., rr. 3, 6.

WALSH v. BECKMANVLR 149

HOOD, J.·8 Mar 1915·Supreme Court of Victoria

LicensingLicensing Act 1890 (No. 1111), ss. 17, 18 — Annual value of premises — How computed — Net annual value to landlord.

THE KING v. THE REGISTRAR OF TITLES, EX PARTE MADDOCKVLR 152

[Coram GRIFFITH, C.J., BARTON, ISAACS, AND DUFFY, JJ.]·8 Mar 1915·In the High Court of Australia

Transfer of landAdministration and Probate Act 1890 (No. 1060), ss. 6, 9, 12 — Transfer of Land Act 1890, s. 193 — Real estate — Devolution of — Title — Executor — Administrator — Executor of executor — Executor of administrator — Registered proprietor, right to be registered as — Practice — Rescinding leave to appeal, or dismissing appeal.

TRIGG v. KETTLEVLR 167

HOOD, J.·26 Mar 1915·Supreme Court of Victoria

MaintenanceChildren — Illegitimate child — Complaint against putative father — Dismissal by justices — Second complaint to other justices — Res judicata — Dismissal on merits — Extent to which justices should defer to former decision — Marriage Act 1890 (No. 1166), ss. 42, 43, 48.

IN THE WILL OF GOODMANVLR 172

HOOD, J.·29 Mar 1915·Supreme Court of Victoria

WillConstruction — Intermediate income — Right to immediate payment of vested gift — Direction to accumulate until certain event — No direction as to disposal — Ultimate gift of fund to children attaining twenty-one or marrying, followed by direction to trustees to hold on certain trusts for children and grandchildren — Intermediate income following fund — Right to payment of vested share on attaining twenty-one, notwithstanding direction to accumulate until later time.

IN RE HOUSEVLR 178

HOOD, J.·22 Mar 1915·Supreme Court of Victoria

EvidenceWitness — Jurisdiction — Aid to inferior tribunals — Board constituted under s. 11 of Railways Act 1896 (No. 1439) — Subpna ad testificandum.

IN RE RYGJAVLR 179

HOOD, J.·29 Mar 1915·Supreme Court of Victoria

International lawPrize — Enemy goods — Ex neutral ship — Illegal trading — Declaration of Paris — Seizure on wharf — Jurisdiction — Condemnation.

GRAY v. DALGETY AND CO. LIMITEDVLR 184

[Coram GRIFFITH, C.J., ISAACS AND POWERS, JJ.]·18 Dec 1914·In the High Court of Australia

ContractLoan — Agreement, not in writing, to find lender on mortgage — Interest in land — Statute of Frauds — Uncertainty — Certain terms of contract not specified — Instruments Act 1890 (No. 1103), s. 208.

IN RE THE TRUSTEES OF ST. MARY’S HOSPITAL, LONDON, AND REBECCA BALDVLR 218

HODGES, J.·8 Feb 1915·Supreme Court of Victoria

Real propertyEnglish charity — Real property in Victoria — Sale by trustees of charity — Consent of Court, whether necessary — English Trusts Act 1893, s. 41.

IN THE WILL OF McKELLARVLR 220

CUSSEN, J.·3 May 1915·Supreme Court of Victoria

WillRepugnancy — Absolute gift of real estate — Subsequent attempted restrictions on sale — "Not to be sold for 21 years from my death" — Invalidity of.

IN THE ESTATE OF MITCHELLVLR 222

A’BECKETT, J.·14 Apr 1915·Supreme Court of Victoria

ReleaseMistake — Compromise — Ignorance of fact — Estate insolvent — Releases by creditors — Subsequent unexpected accession of property — Rights of creditors — Petition for advice — Trusts Act 1890 (No. 1150), s. 60.

IN RE GRAYVLR 226

A’BECKETT, J.·27 Apr 1915·Supreme Court of Victoria

Barrister and solicitorArticled clerk — Other occupation during term of articles — Military service abroad — Sanction of judge — Terms and conditions — Rules for admission of barristers and solicitors — 16th February 1905, r. 6; 1st May 1913, r. 2.

IN THE WILL OF ASCOTTVLR 227

A’BECKETT, J.·4 May 1915·Supreme Court of Victoria

InfantsTrustees — Maintenance — Infants contingently entitled to corpus of property — Life tenant entitled to intermediate income — Application of capital for maintenance — Consent of life tenant — Power of Court to allow maintenance.

WILLIAMS v. MacDONALDVLR 229

A’BECKETT, A.C.J.·25 Feb 1915·Supreme Court of Victoria

Set-offPlaintiff suing as executor — Residuary legatee sole person interested in estate — Debt due by residuary legatee to defendant.

MURRAY v. GUNSTVLR 232

CUSSEN, J.·19 May 1915·Supreme Court of Victoria

Police OffencesPolice Offences. Act 1912 (No. 2422), s. 40 — Property suspected of being stolen — Possession of — When suspicion must exist — Reasonableness of suspicion — Immaterial whether property reported to have been stolen or not.

WOODROFFE & CO. v. J. W. MOSSVLR 237

CUSSEN, J., A’BECKETT, J., HODGES, J., and HOOD, J.·9 June 1915·Supreme Court of Victoria

PracticePleading — Set-off — Whether claim for unascertained sum pleadable as set-off.

IN THE WILL OF BREHENEYVLR 242

CUSSEN, J.·26 May 1915·Supreme Court of Victoria

WillPerpetuity — Class gift — Bequest of residue "to the children of my brothers who reach the age of 25 years in the case of boys and 21 years in the case of girls."

THE TRUSTEES EXECUTORS AND AGENCY CO. LTD. v. THE COMMISSIONER OF LAND TAXVLR 245

[Coram GRIFFITH, C.J., ISAACS, HIGGINS, GAVAN DUFFY, AND RICH, JJ.]·21 May 1915·In the High Court of Australia

Land Tax (Federal)Tenant for life — Who is — Refund by Commissioner of tax paid — Mistake of law — Re-assessment — Liability of taxpayer to again pay tax refunded — Power of Commissioner to re-assess — Land Tax Assessment Act (No. 22 of 1910), ss. 20, 21, 23, 25, 59, 60 — Acts Interpretation Act (No. 2 of 1901), s. 33 (1).

REX v. LONSDALEVLR 269

MADDEN, C.J.·17 May 1915·Supreme Court of Victoria

Criminal lawPractice — Jury — Choosing new foreman — Juries Act 1890 (No. 1104), Part IX.

KERRISON v. LAVELLVLR 270

MADDEN, C.J., A’BECKETT, J., and CUSSEN, J.·13 June 1915·Supreme Court of Victoria

PracticeJury, right to — Common Law action — Claims for damages for conversion, trespass, and slander of title — Injunction also claimed — Substantiality of equitable relief claimed — Rules of Supreme Court 1906 — Order XXXVI., rr. 3, 6.

IN RE CRONKVLR 272

A’BECKETT, J.·29 Apr 1915·Supreme Court of Victoria

Vendor and purchaserApparent easement — Water channels over portion of land — Not mentioned in contract — Knowledge of purchaser of existence — Compensation, right to — Misdescription or error — Transfer of Land Act 1890 (No. 1149), s. 239, 25th Schedule (Table A).

McEWEN v. LEVY BROS.VLR 276

CUSSEN, J.·15 June 1915·Supreme Court of Victoria

EvidenceAffidavit — Misdescription in jurat of person before whom oath taken — "Commissioner for Oaths of the Supreme Court of Victoria" — English Commissioner for Oaths not in fact holding Victorian commission. — Supreme Court Act 1890 (No. 1142), s. 90.

IN RE GIBBVLR 279

[Coram GRIFFITH, C.J., ISAACS AND RICH, JJ.]·15 June 1915·In the High Court of Australia

Administration and probateProbate duty — Immediate gift — Possession and enjoyment to exclusion of donor — Husband and wife — Money supplied by husband to pay for house bought by wife — Gift of money or of house — House used as matrimonial domicil — Administration and Probate Act 1903 (No. 1815), s. 11.

REX v. BOURKEVLR 289

MADDEN, C.J., A’BECKETT, J., and HOOD, J.·12 May 1915·Supreme Court of Victoria

Criminal lawAssault with intent to ravish — Rape — Violence, to what extent a necessary element — Drunkenness, in what circumstances a defence — Intent — Sentence — Criminal Appeal Act 1914 (No. 2564), ss. 3, 4 — Crimes Act 1890 (No. 1079), ss. 42, 43.

HOWEY v. DOLANVLR 297

CUSSEN, J.·15 June 1915·Supreme Court of Victoria

Landlord and tenantLease — Option of renewal — "Rent not more than 10l. per week net." — "Net," effect of — Landlord liable for rates under original lease — Incidence of rates on renewal.

DELANEY v. McKINLEYVLR 302

[Coram GRIFFITH, C.J., ISAACS, GAVAN DUFFY, AND RICH, JJ.]·25 Mar 1915·In the High Court of Australia

MaintenanceIllegitimate child — Evidence — "Oath of mother only" — Previous order for confinement expenses — Corroboration — Marriage Act 1890 (No. 1166), ss. 42, 48 — Marriage Act 1900 (No. 1684), s. 4.

WHITTON v. FALKINERVLR 304

[Coram GRIFFITH, C.J., ISAACS, HIGGINS, GAVAN DUFFY, AND RICH, JJ.]·11 June 1915·In the High Court of Australia

CustomsCustoms Act 1901-1910, s. 167 — Customs tariff 1908-1911, items 161, 380 (A), (B), (E) — Customs duty, classification for — Motor-cars, lorries, and waggons — Chassis — Motor engine and trailers — Evidence — Experts in the trade — Article not known in trade — Action to recover overpaid duty — Question in issue.

IN RE COCKVLR 324

[Coram GRIFFITH, C.J., ISAACS, HIGGINS, GAVAN DUFFY, AND RICH, JJ.]·15 June 1915·In the High Court of Australia

InsolvencyAssignment for the benefit of creditors — Consent of three-fourths majority of creditors to disposal of property — Purchase by one creditor of interests of other creditors who had proved — Obligations as between creditors — Fraud on the deed — Equitable remedy — Jurisdiction of Court of Insolvency — Insolvency Act 1890 (No. 1102), s. 5 — Insolvency Act 1897 (1513), ss. 5, 83.

IN THE WILL OF RAPHAELVLR 350

A’BECKETT, J.·24 May 1915·Supreme Court of Victoria

Administration and ProbateExecutor and trustee — Commission — Legacy to executors and trustees who shall act — Trustee acting as agent empowered to charge as such — Allowance of further commission — Administration and Probate Act 1890 (No. 1060), s. 26.

IN RE ANDERSON’S SETTLEMENTVLR 355

HODGES, J.·30 June 1915·Supreme Court of Victoria

SettlementConstruction — Equitable estates in freehold property — Omission of words of limitation — Intention to create estate in fee simple.

APPLETON v. APPLETONVLR 361

MADDEN, C.J., A’BECKETT, J., CUSSEN, J.·20 July 1915·Supreme Court of Victoria

DivorceNullity — Prior marriage of respondent — Decree nisi granted — Remarriage before decree absolute — Change in Statute Law after decree nisi and before decree could be made absolute — New legislation, whether retrospective — Marriage Act 1890 (No. 1166), ss. 84, 85 — Marriage Act 1906 (No. 2062), ss. 2, 3, 5 — Acts Interpretation Act 1890 (No. 1058), s. 27 (2).

R. v. AULT AND HESLOPVLR 368

A’BECKETT, J.·30 July 1915·Supreme Court of Victoria

Criminal lawJury — Special jury — Circumstances in which ordered — Complex facts, documents, and figures — Juries Act 1890 (No. 1104), s. 39.

RYAN v. COSTELLOVLR 370

A’BECKETT, J.·29 June 1915·Supreme Court of Victoria

Vendor and purchaserConditions of sale — Default in payment of interest — Right to rescind — Forfeiture — Penalty — Equitable rules as to — Applicability of — Interest, default in payment — Time of the essence of the contract — Transfer of Land Act 1890 (No. 1149), s. 239, 25th Schedule (Table A).

LISTER v. SCHULTEVLR 374

MADDEN, C.J.·13 Aug 1915·Supreme Court of Victoria

InstrumentsPractice — Instruments Act 1890 (No. 1103), Div. 4 — Commonwealth Bills of Exchange Act 1909 (No. 27), s. 89 — Summary proceedings on bill — Promissory note — "Unconditional promise to pay" — Writ, irregularities in — Form in Second Schedule to be strictly adhered to — Irregularities — Address for service not indorsed — Capacity in which plaintiff sues not set out — "Holder," insufficiency of — Acceptance of service by solicitor and written undertaking to "enter appearance in due course" — Effect of — Waiver of irregularities.

IN RE ROSSVLR 381

MADDEN, C.J.·16 Aug 1915·Supreme Court of Victoria

Barrister and solicitorSupreme Court Act 1912 (No. 2437), ss. 3, 4 — Managing clerk — "One examination" — Annual and supplementary University examinations.

THE LION ROLLING MILLS PROPRIETARY LIMITED v. NOYES BROS. (MELBOURNE) PROPRIETARY LIMITEDVLR 383

MADDEN, C.J.·16 Aug 1915·Supreme Court of Victoria

PracticeDiscovery — Affidavit of documents — Privilege — Identification of documents for which privilege claimed, what is sufficient — Judge's power to look at documents — Rules of the Supreme Court 1906 — Order XXXI., r. 19 (a) (2).

THE PRESIDENT, ETC., OF THE SHIRE OF RODNEY v. VIBERTVLR 388

MADDEN, C.J., HODGES, J.·21 June 1915·Supreme Court of Victoria

ContractWords, meaning of — Secondary meaning of — Trade usage — "Blue gum" — Misdirection — Practice — Third party — Right to address jury.

BIRT v. BROWNEVLR 398

HODGES, J.·9 June 1915·Supreme Court of Victoria

Police offencesPolice Offences Act 1912 (No. 2,422), s. 40 — Property suspected of being stolen — Reasonableness of suspicion — Immaterial whether property stolen or not.

R. v. GRAHAMVLR 402

MADDEN, C.J., A’BECKETT, J., HOOD, J.·21 June 1915·Supreme Court of Victoria

Criminal lawEvidence — Similar acts — System — Intent — Admissibility — Character, evidence as to — Accomplice — Corroboration — Application of rule — Onus of proof Reasonable doubt — Direction — Crimes Act 1891 (No. 1231), s. 34 (3) — Criminal Appeal Act 1914, s. 4.

IN RE WISEMAN’S TRUSTSVLR 439

HOOD, J.·13 Aug 1915·Supreme Court of Victoria

CharityCy-prs — Gift of land on trust for charitable purposes — Particular purpose impracticable — Land sold — Money applied cy-prs.

HOWELL v. BULLENVLR 445

MADDEN, C.J.·11 Aug 1915·Supreme Court of Victoria

PoundsPounds Act 1890 (No. 1129), s. 30 (7) — Sheep trespassing on common — "Wilfully causing to trespass" — Wilful act of servant committed without privity of master — Criminal responsibility of master.

STUBBS v. J. & J. LONSDALE AND CO. LIMITEDVLR 448

A’BECKETT, J.·15 July 1915·Supreme Court of Victoria

PracticeService of writ — Substituted service — Defendant company registered in England and carrying on business there and in the Commonwealth — Service on agent within Commonwealth — Service and Execution of Process Act 1901 (No. 11), s. 4 — Rules of the Supreme Court 1906 — Orders IX., X.

CRAIG, WILLIAMSON PROPRIETARY LIMITED v. BARROWCLIFFVLR 450

HODGES, J.·2 Aug 1915·Supreme Court of Victoria

JusticesJustices Act 1890 (No. 1105), s. 59 (3) — Detinue — Illegal detention of goods — Books — Papers.

BROWN v. THE BANK OF AUSTRALASIAVLR 453

HOOD, J.·10 Aug 1915·Supreme Court of Victoria

AssignmentChose in action — Judgment debt, assignment of — "Express notice in writing," what amounts to — Deed of assignment shown to debtor — Execution issued by assignor — Validity of — Supreme Court Act 1890 (No. 1142), s. 63, sub-s. 6 — Rules of Supreme Court 1906 — Order XIV. A, r. 1.

CLUGSTON v. ROBERTSVLR 456

A’BECKETT, J.·16 July 1915·Supreme Court of Victoria

Police offencesPossession of goods suspected of being stolen — Identity of goods — Grounds of suspicion — Police Offences Act 1912 (No. 2422), s. 40.

LENNOX v. CALLAGHANVLR 461

A’BECKETT, J.·22 July 1915·Supreme Court of Victoria

Pure foodHealth — Sale of adulterated article of food — Reasonable precautions — Supervision over employs — Whether element in precautions — Evidence — Uncontradicted evidence of witness for prosecution showing ignorance of adulteration by defendant — Whether justices may disregard — Pure Food Act 1905 (No. 2010), ss. 32, 35, 36.

BOOTH v. WALLACEVLR 466

A’BECKETT, J., HOOD, J., CUSSEN, J.·11 Aug 1915·Supreme Court of Victoria

County CourtPractice — Judgment for defendant — Appeal to Supreme Court — Judgment for plaintiff ordered on appeal — Whether a County Court judgment — Entry in County Court register — Duty of Registrar — County Court Act 1890 (No. 1078), ss. 104, 133.

EX PARTE LUTHVLR 470

JUDGES OF THE SUPREME COURT (MADDEN, C.J., A’BECKETT AND HOOD, JJ.)·4 May 1915·Supreme Court of Victoria

Barrister and solicitorAdmission to practise — Articles of clerkship — Clerk not a minor — Covenant to indemnify master — Form of articles — Board of Examiners — Appeal from to Judges — Council of Legal Education — Rules of May 1913 — Rules of February 1905, Part II., r. 6, Schedule "H."

EX PARTE HIGGINSVLR 472

JUDGES OF THE SUPREME COURT (MADDEN, C.J., A’BECKETT AND CUSSEN, JJ.)·10 Aug 1915·Supreme Court of Victoria

Barrister and solicitorAppeal to the Judges — Admission to practice — Articles of clerkship — Period of service under — Continuous — Irregularity in — Refusal of certificate — Order thereon — English practice — Rules of the Supreme Court of 1892 — Council of Legal Education — Rules of February 1905, Part I., r. 5 (c); Part II., rr. 5 and 6 — Admission on order of the Judges of the Supreme Court without certificate of Board of Examiners.

R. v. LLOYDVLR 476

CUSSEN, J., MADDEN, C.J., A’BECKETT, J.·9 Aug 1915·Supreme Court of Victoria

War precautionsPublic safety and defence of Commonwealth — Naturalized persons — Disaffected or disloyal — "Reason to believe" — Detention in military custody — Regulation empowering Minister by warrant to order detention — Validity of — Habeas corpus — Facts necessary to be stated in warrant — Power of Court to examine — Evidence — Privilege — Claim of, how made — Minister of State — Public interest and safety — Officer of Commonwealth — Writ of habeas corpus directed to — Jurisdiction of Supreme Court to issue — War Precautions Act 1914-1915, s. 4 (1).

PRITCHARD v. JEVA SINGHVLR 510

MADDEN, C.J.·18 Aug 1915·Supreme Court of Victoria

JusticesPetty Sessions — Jurisdiction — Service of summons, whether condition precedent — Service — "Last known place of abode" — Affidavit of service of summons — Summons not in fact served — Objection taken as to non-service but case proceeded with — Remedy — Order to review — Rehearing — Practice — Further affidavit by person obtaining order to review — When allowed — Justices Act 1890 (No. 1105), ss. 89 (4), 141.

HOUGHTON v. HOUGHTONVLR 517

MADDEN, C.J.·26 Aug 1915·Supreme Court of Victoria

DivorceCosts of investigation of wife's case — Payment by petitioner — Power to order — "Merits of her case" — Meaning of — Demerits of petitioner's case — Marriage Act 1890 (No. 1166), s. 111.

HARVEY v. OTTOWAYVLR 520

MADDEN, C.J.·26 Aug 1915·Supreme Court of Victoria

Husband and wifeMarried woman — Necessaries supplied to wife living with her husband — Contract made "otherwise than as agent" — Married Women's Property Act 1890 (No. 1116), s. 4; Married Women's Property Act 1896 (No. 1416), s. 2.

OLSEN v. OLSENVLR 526

MADDEN, C.J.·19 Aug 1915·Supreme Court of Victoria

DivorceDesertion — Offer to return to cohabitation — Whether bon fide. Question of fact in each case — Refusal of offer does not constitute an act of desertion — Practice — Costs of wife unsuccessfully defending suit — Discretion of Court — Marriage Act 1890 (No. 1166), ss. 74 (a), 116.

IN RE THE INCOME TAX ACTSVLR 530

MADDEN, C.J.·10 Aug 1915·Supreme Court of Victoria

Income taxMining company — Profits — Deduction — Purchase money of properties — Balance payable by annual instalments calculated by way of percentage on value of minerals won after allowing for working expenses — Whether annual instalment a capital expenditure, or an outgoing incurred in production of income — Income Tax Act 1895 (No. 1374), s. 9 (1) (2) (b) — Income Tax Act 1903 (No. 1819), s. 9 (1) — Income Tax Act 1904 (No. 1938), s. 8 (1) — Income Tax Act 1906 (No. 2030), s. 5.

IN THE WILL OF BAKERVLR 535

HOOD, J.·16 Sept 1915·Supreme Court of Victoria

Administration and probateProbate granted in United Kingdom — Sealing in Victoria — Application by attorney under power of executors — Power of attorney — Execution of — Verification — Evidence — Mode of proof — Imperial Statute — Oaths and Affirmations Act 1835 (5 & 6 Will IV., c. 62), s. 16 — Whether in force in Victoria — Administration and Probate Act 1890 (No. 1060), s. 40 — Rules of the Supreme Court 1906 — Order XXXVIII., r. 6 — Probate and Administration Rules of 1st February 1907, r. 11.

WHITTON v. McNEILVLR 539

MADDEN, C.J.·25 Aug 1915·Supreme Court of Victoria

CustomsGoods subject to the control of the Customs — Interference, what amounts to — Authority, evidence of — Goods — Packages — Customs Act 1901-1910, ss. 4, 33, 86.

McNEIL v. WHITTONVLR 545

[Coram GRIFFITH, C.J., GAVAN DUFFY, J., AND RICH, J.]·27 Sept 1915·In the High Court of Australia

CustomsOffence — Goods subject to control of Customs — Interference with — What amounts to — Customs Act 1901-1910, s. 33 — Judiciary Act 1903-1910, s. 39 (2) (b).

McPHAIL v. McPHAILVLR 547

HOOD, J.·30 Sept 1915·Supreme Court of Victoria

PracticeSummons for directions — Jurisdiction to enter judgment by consent on hearing of summons — Admissions by defendant — Order XXX. — Order XXXII., r. 6.

LLOYD v. WALLACHVLR 549

[Coram GRIFFITH, C.J., ISAACS, HIGGINS, GAVAN DUFFY, AND RICH, JJ.]·13 Sept 1915·In the High Court of Australia

War precautionsPublic safety and defence of Commonwealth — Naturalized persons — Disaffected or disloyal — Detention in military custody — Regulation empowering Minister by warrant to order detention — Validity of — Habeas corpus — Facts necessary to be stated in warrant — Belief of Minister — Power of Court to examine — Evidence — Privilege — Minister of State — Public interest and safety — High Court — Appellate jurisdiction — Appeal from order of Supreme Court of a State discharging a person on habeas corpus — War Precautions Act 1914-1915, s. 4 (1) — Commonwealth Constitution, s. 73.

AKTIEBOLAGET SEPARATOR LIMITED v. BALLANTINEVLR 563

A’BECKETT, J.·15 July 1915·Supreme Court of Victoria

CostsTaxation — Just and reasonable charges or expenses properly incurred in procuring evidence — Rules of the Supreme Court 1906 — Order LXV., r. 27 (9) — Action for infringement of patent — Cost of purchase by plaintiff of defendants' machine.

BUNKER v. BLACKHURSTVLR 567

A’BECKETT, HODGES, and CUSSEN, JJ.·13 Sept 1915·Supreme Court of Victoria

LicensingBar, what is — Sale of non-intoxicating liquor — Licensing Act 1890 (No. 1111), s. 142 — Licensing Act 1906 (No. 2068), ss. 85, 86, 87 — Intoxicating Liquor (Temporary Restriction) Act 1915 (No. 2584), ss. 2, 3.

JOHN SANDERSON & CO. v. CRAWFORDVLR 568

MADDEN, C.J., HOOD, J., and CUSSEN, J.·1 Oct 1915·Supreme Court of Victoria

JusticesPetty sessions — Jurisdiction — Proceedings between residents of different States — Federal jurisdiction — Summons — Power of Clerk of Petty Sessions to issue — Constitution of Court of Petty Sessions — Service and Execution of Process Act 1901-1912, ss. 4 (1), 5 (1) (2), 13 — Judiciary Act (No. 6 of 1903), s. 39 (1) (2) — The Commonwealth of Australia Constitution Act, ss. 51 (24), 75, 77 — Justices Act 1890 (No. 1105), ss. 20, 22, 23.

CRESPIN & SON v. COLAC CO-OPERATIVE FARMERS LIMITEDVLR 580

MADDEN, C.J., HOOD, J., and CUSSEN, J.·1 Oct 1915·Supreme Court of Victoria

ContractSale of goods — "Agreement for the sale or delivery of goods duty paid" — Goods to be imported — Unascertained goods — Increase in Customs duties between date of agreement and import — Alteration of price — Right of seller to add duty — Commonwealth, legislative power of — Ultra vires — Taxation — Customs Act 1901-1910, s. 152.

BLAZEY v. McCALLVLR 595

CUSSEN, J.·14 Oct 1915·Supreme Court of Victoria

Local governmentBuildings — Regulation of — "External wall" — Meaning of — Wall in part slightly out of street alignment — Filling up of space — Whether part of external wall — Local Government Act 1903 (No. 1893), s. 198, Thirteenth Schedule, Part V. — Melbourne Building Act 1849 (13 Vict., No. 39), s. 3.

IN THE MATTER OF THE INCOME TAX ACTSVLR 600

MADDEN, C.J., HODGES, J., and HOOD, J.·6 Oct 1915·Supreme Court of Victoria

Income taxIncome Tax Act 1895 (No. 1374), s. 9 (9) — Land Tax Act 1910 (No. 2284), s. 11 — Taxable income — Deductions — Losses sustained from operations, the income from which is exempt from income tax.

DOWLING v. THE COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITEDVLR 604

[Coram GRIFFITH, C.J., ISAACS AND POWERS, JJ.]·9 Sept 1915·In the High Court of Australia

InsolvencyPetition for sequestration — Abuse of process of the Court — Motive of petitioner — Debtor's summons — Application for dismissal of — Res judicata — Insolvency Act 1890 (No. 1102), ss. 37 (vi.), 38.

THE KING v. THE REGISTRAR OF TITLESVLR 622

CUSSEN, J.·11 Oct 1915·Supreme Court of Victoria

Administration and probateAdministration and Probate Act 1907 (No. 2120), s. 5 — Transfer of Land Act 1890 (No. 1149), s. 193 — Transfer of Land Act 1915 (No. 2740), s. 232 — Executor, removal of — Two executors — Executors of executor — Jurisdiction — Registration of continuing executor under Transfer of Land Act 1890 — Rules of Supreme Court 1909, chap. iii., r. 18a.

SHARP v. THOMSONVLR 629

[Coram GRIFFITH, C.J., ISAACS AND POWERS, JJ.]·9 June 1915·In the High Court of Australia

ContractSale of goods — Sale by description, not by sample — Specimen — Evidence as to, admissibility of — Consensus ad idem — Repudiation of contract — Waiver of conditions precedent.

WILSON v. JONESVLR 636

HOOD, J.·29 Sept 1915·Supreme Court of Victoria

JusticesObligation to believe uncontradicted evidence — Duty to give reasons — Licensing Act (No. 2068) 1906, s. 91 — Power of Court to ask for reasons.

DUNLOP v. TROYVLR 639

A’BECKETT, HODGES, and CUSSEN, JJ.·12 Oct 1915·Supreme Court of Victoria

ContractLandlord and tenant — Land let for grazing sheep — Landlord's covenant "to look after stock and keep fences in repair" — Disrepair — Express notice, whether must be given to landlord — Tenant's sheep escaping and damaging adjoining owner's crop — Damages recovered against tenant — Liability of landlord to indemnify tenant — Remoteness of damage — Costs — County Court practice — Third party procedure — County Court Act 1890 (No. 1078), s. 148 — County Court Rules, Order VIII., rr. 72, 73, 74, 75.

SYMONS v. SCHIFFMANVLR 645

[Coram GRIFFITH, C.J., GAVAN DUFFY AND RICH, JJ.]·22 Sept 1915·In the High Court of Australia

CustomsOffence — Interference with goods subject to control of Customs — Imported goods found in defendant's possession month after arrival — No authority given to any person to remove from Customs control — Whether mere possession sufficient to constitute offence — Evidence — Onus of proof — Averments in information — Absence of proof to contrary — Allegation of mixed law and fact — Facts placed before Court by prosecutor — Whether statutory provision as to proof of offence operates — High Court — Jurisdiction — Appeal from Court of General Sessions — Decision in exercise of Federal jurisdiction on appeal from Court of Petty Sessions — Whether appeal to High Court by way of Case stated — Customs Act 1901-1910, ss. 33, 255 — Commonwealth Constitution, s. 73 — Judiciary Act 1903-1915, ss. 2, 39 (2) — Rules of the High Court 1911, Part II., sec. iv., r. 1 — Justices Act 1890 (No. 1105), s. 139.

FARROW’S FALCON PRESS PROPRIETARY LIMITED v. QUARRILLVLR 651

MADDEN, C.J., HODGES, J., and HOOD, J.·7 Oct 1915·Supreme Court of Victoria

ContractSale of goods — Goods not in accordance with contract — Acceptance of portion — Right to reject balance — Evidence — Coloured picture cards intended for sale to public — Purpose known to both parties — Admissibility of evidence that defect would not affect market value — Substantial compliance with contract — Judgment for plaintiff in lieu of new trial.

IN THE MATTER OF ARBITRATION BETWEEN THE PRAHRAN AND MALVERN TRAMWAYS TRUST AND WARDVLR 656

HODGES, J.·24 June 1915·Supreme Court of Victoria

Lands compensationTramway — Value of land — How ascertained — Suitability for tramway purposes — Proximity to route — Enhanced value — Date when value to be ascertained — Measure of compensation — Notice to treat — Building contract entered into — Termination of — Compromise — Prahran and Malvern Tramways Trust Act 1910 (No. 2294) — Lands Compensation Act 1890 (No. 1109) — Local Government Act 1903 (No. 1893), s. 675.

THE KING v. JOHNSTONVLR 659

CUSSEN, J.·19 Oct 1915·Supreme Court of Victoria

County CourtPractice — Costs — Taxation by Registrar — Review by Judge — Power to review after allocatur signed — Right of appeal — Prohibition — County Court Rules 1891, rr. 428, 450.

IN THE MATTER OF THE STAMPS ACTSVLR 666

MADDEN, C.J., HODGES and HOOD, JJ.·3 Nov 1915·Supreme Court of Victoria

StampsStamp duty — Additional duty, imposition of — "From and after" certain date — Liability to additional duty — How determined — Whether date of instrument or date of assessment to be regarded — Instrument executed out of Victoria — Transfer by way of gift — Stamps Act 1914 (No. 2575), s. 2 — Stamps Act 1892 (No. 1274), ss. 4, 24, 30; Schedule, Part VIII. — Stamps Act 1904 (No. 1902), s. 4 — Stamps Act 1890 (No. 1140), s. 71.

IN THE MATTER OF THE STAMPS ACTSVLR 670

MADDEN, C.J., HODGES, J., and HOOD, J.·3 Nov 1915·Supreme Court of Victoria

StampsStamp Duty — Settlement — "Property" — Meaning of — Expectation that donee of power of appointment may appoint in favour of settlor — Property to which settlor may so become entitled purported to be settled — Whether chargeable with duty as a settlement of or agreement to settle property — Stamps Act 1892 (No. 1274), ss. 4, 30, Schedule, Part VIII. — Stamps Act 1890 (No. 1140), s. 71.

IN RE CURRIE’S SETTLEMENTSVLR 675

HOOD, J.·13 Oct 1915·Supreme Court of Victoria

Administration and ProbateAdministration and Probate Act 1890 (No. 1060), s. 112 — "Property" — Administration and Probate Act 1903 (No. 1815), s. 9 (2) — Settlement — Property comprised therein partly situate in Victoria, partly else-where — Duty payable in respect of what property — Property originally comprised in settlement — Property in Victoria at settlor's death — Procedure by originating summons.

THE KING v. SANDHURST AND NORTHERN DISTRICT TRUSTEES EXECUTORS AND AGENCY CO. LTD.VLR 682

MADDEN, C.J., HODGES and HOOD, JJ.·5 Oct 1915·Supreme Court of Victoria

Land tax (Victoria)Exemption — "Land used exclusively for charitable purposes" — Land held on charitable trusts leased to tenants — Tenants using land for business, residential, or agricultural purposes — Liability of trustees — Land Tax Act 1910 (No. 2284), ss. 3; 9 (2) (j), (3) (a) (iii.), (3) (b); 39, 49, 65, 84.

IN THE MATTER OF THE CITY OF MELBOURNEVLR 689

MADDEN, C.J., HODGES, J., and HOOD, J.·13 Oct 1915·Supreme Court of Victoria

Local GovernmentLocal Government Act 1903 (No. 1893), s. 197 — Thirteenth Schedule, Part VI. — Melbourne, City of — By-law — Regulation — Validity of — Reasonable — Certain — "Times and hours" — Discrimination — Sunday performances at theatres — Picture shows — 21 Geo. III., c. 49 — Application to quash — Supreme Court Act 1915 (No. 2733), s. 203.

IN THE WILL OF VERNONVLR 699

CUSSEN, J.·8 Nov 1915·Supreme Court of Victoria

WillSoldier — Informal testamentary writing — Soldier under orders to embark — Actual military service — Wills Act 1890 (No. 1159), ss. 5, 10 — Wills Act 1915 (No. 2749), ss. 6, 10 — Will by minor.

THE COLONIAL MUTUAL FIRE INSURANCE COMPANY LIMITED v. SMAILVLR 702

A’BECKETT, J.·15 Nov 1915·Supreme Court of Victoria

InstrumentsBook debt — Contractor — Assignment — Verbal arrangement — Subsequent written order to pay assignee — Deed of transfer, indemnity, and further assurance — Necessity for registration — Book Debts Act 1896 (No. 1424), ss. 2, 3 — Instruments Act 1915 (No 2672), Part IX., ss. 180, 181.